Mcghee v. State

• Court: Georgia Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Mcghee v. State, 97 Ga. 199, 22 S.E. 589 (Ga. 1895)
• Decision Date: 08 July 1895
• Parties: McGHEE. v. STATE.

22 S.E. 589

97 Ga. 199

McGHEE.

v.STATE.

Supreme Court of Georgia.

July 8, 1895.

False Pretenses—Misrepresentations by Mortgagor—Burden of Proof—Sufficiency of Evidence.

1. Where a debtor executes to two creditors separate mortgages to secure debts due to them respectively, and it appears that in procuring the credit to secure which the last mortgage was executed he represented to the mortgagee that the property mortgaged was unincumbered, such misrepresentation cannot be made the basis of a prosecution for cheating and swindling, under section 4587 of the Code, unless it be shown that in consequence thereof the second mortgagee has been in fact defrauded, and that in extending the credit upon the faith of such misrepresentation he has sustained a loss.

2. In such a case the burden is upon the state, not only to establish the misrepresentation made and credit given, but likewise a loss; and where the evidence shows that the mortgaged property has neither been sold nor appropriated to the extinguishment of the senior mortgage, there is no such evidence of a loss by the junior mortgagee as will sustain a conviction of the debtor. Especially is this true where the evidence shows that the mortgaged property exceeds in value the aggregate indebtedness represented in both the mortgages, and it does not appear that the senior mortgage is being either claimed against the mortgagor or enforced against the mortgaged property. (Syllabus by the Court.)

Error from city court of Monroe county; J. B. Williamson, Judge.

J. W. McGhee was convicted of swindling, and brings error. Reversed.

The following is the official report:

McGhee was tried in the city court of Monroe county upon an accusation charging that on February 13, 1895, in Monroe county, he unlawfully and falsely represented to R. B. Stephens, of the firm of Stephens & Ensign, that at the time he executed and delivered a mortgage to that firm on a red cow, three years old, a bay mare pony eight years old, and a white-painted buggy, there were no other liens upon said property, when he knew there were other liens upon it, and by said false representations obtained a credit from said firm, and thereby defrauded said firm of rent on Frank Smith amounting to $17.17. Further, that defendant, on the—— day of ——, 1895, in Monroe county, unlawfully, after having executed and delivered to said firm a mortgage upon said property, sold or otherwise disposed of the same, without their consent. Indictment and trial by jury were waived by defendant The judge below dismissed the second count in the accusation, and found defendant guilty of the accusation contained in the first count. Defendant excepts, and alleges that this ruling was contrary to law, evidence, etc. Further, that, in order to complete the offense of cheating and swindling, it is necessary that the creditor or party from whom credit is obtained or valuable goods received, should be defrauded, and such fraudulent transaction must necessarily result in a loss. This ground has not been laid, inasmuch as the creditor swore that he had foreclosed the mortgage, and had had the property levied upon, but that it had not yet been sold; and it is not within his knowledge whether the proceeds of the sale will be sufficient to pay off both the mortgages or not; hence no one can say whether he is defrauded or not until said sale is consummated, and the proper credit made on the execution by the officer. Further, that a fraudulent representation is not indictable unless calculated todeceive a person of ordinary prudence and discretion, and, though the representation made by defendant was false, it was within the power of the creditor to ascertain from the records of the county whether the defendant's...